Those Pesky Library Exceptions in State Law

Pro-censors have a strong tendency to make overblown claims that one or another book is obscene or pornographic.  By using such terms they are trying to claim that the contents of the challenged book are either 1) legally obscene for everybody, and so the book is not protected by the First Amendment, or 2) are obscene with regard to a minor, and so a minor's access to the book can legally be limited, even if an adult's access cannot be limited.

Most of the challenged books I've reviewed on this blog fall into neither of these categories.  That is, they are neither obscene for everyone nor obscene for a minor.  While parents may find some of those books objectionable for any of a long list of reasons, they're mostly kidding themselves if they think the library is breaking the law by letting their kids read them. 

There are some exceptions, though.  The graphic novel Block Dossier, for example, might meet the definition of "obscene for minors" in some states.  This is the book that resulted in the firing of two desk attendants who deleted an 11-year-old's hold on the book, in Jessamine County, Kentucky.  While the book is protected speech for adults, it might be legal, in some states, to impose restrictions on a child's access to it.

I say in some states because the laws defining and regulating materials that are "harmful to minors" exist mostly at the state level, and no two states are exactly alike in this regard.  While all the state laws I looked at contain some variation of the three-pronged Miller test for defining obscenity, each state uses slightly different language, casts a broader or narrower net, imposes different penalties, and permits different exemptions or exceptions.

It is the exemptions that often cause a problem for the would-be censors.  In some states -- certainly not all -- the law that regulates materials that are obscene for minors has a specific exemption for libraries.  State legislatures sometimes enact such exemptions for a variety of reasons, including a desire to keep the statute enforceable.  That is, they don't want the law to wind up overturned by a court because it ran afoul of the strict protections of Free Speech that apply in libraries.

Not being a lawyer, I find it fairly difficult to rummage through state obscenity laws to see whether they've got library exceptions.  I was pleasantly surprised when I found, entirely by accident, that Wisconsin state law was unusually clear on this point.  Since it's unusually clear, I'll use it as an example.

Chapter 948 of Wisconsin state law defines what is obscene for minors, and imposes penalties for providing such materials to a minor.  It also specifically exempts school and library staff from prosecution, and gives some reasons for doing so.  Below is a portion of that law, which happens to be clear enough even for non-lawyers to get at least a partial understanding:

W.S.A. 948.1 Exposing a child to harmful material or harmful descriptions or narrations

. . . .

(4) Libraries and educational institutions. (a) The legislature finds that the libraries and educational institutions under par. (b) carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions.

(b) No person who is an employee, a member of the board of directors or a trustee of any of the following is liable to prosecution for violation of this section for acts or omissions while in his or her capacity as an employee, a member of the board of directors or a trustee:

1. A public elementary or secondary school.

2. A private school, as defined in s. 115.001(3r).

3. Any school offering vocational, technical or adult education that:

a. Is a technical college, is a school approved by the educational approval board under s. 38.50, or is a school described in s. 38.50(1)(e) 6., 7. or 8.; and

b. Is exempt from taxation under section 501(c)(3) of the internal revenue code, as defined in s. 71.01(6).

4. Any institution of higher education that is accredited, as described in s. 39.30(1)(d), and is exempt from taxation under section 501(c)(3) of the internal revenue code, as defined in s. 71.01(6).

5. A library that receives funding from any unit of government.

You can look up Chapter 948 or any other Wisconsin State Law at:
http://www.legis.state.wi.us/rsb/stats.html
The library exemption is at 948.11(4).

SafeLibraries Shows Us Again Why His Information Cannot Be Trusted

In today's post, SafeLibraries chides a Vermont library for the role he claims it played in enabling a convicted sex offender to violate the terms of his probation.  SafeLibraries cites a somewhat vague news article from the Brattleboro Reformer, which describes how the parolee used a library computer to chat with individuals by means of Yahoo Messenger, and how at least one of his chat partners supplied him with some kind of pornography.  The parolee was arrested for violating the terms of his probation.  It is not clear whether or not a crime was committed (other crimes described in the article took place in the past, and the degree to which they had anything -- or nothing -- to do with any library anywhere is not described).

Somehow, SafeLibraries blames the library and the American Library Association, at least in part.  He alleges that "the anything-goes policy of the ALA," created a situation in which the "library is partially at fault for refusing to take action that may have prevented his behavior in the first place."  

But what policy, what filters, what library action would have prevented the parolee's misuse of the computer?  The news article nowhere states that the man visited any pornographic website that would have been blocked by filters. It doesn't indicate that he visited any pornography sites at all.  The article states only that he was engaged in private online chats with like-minded individuals, apparently adults.  Even libraries that implement internet filters usually permit this type of real-time communication. Few internet filters, if any, would trap sending a pornographic image by this means, any more than such programs could determine whether or not a photograph attached to an email message were pornographic (remember that filters work mostly by identifying words and text patterns, and rarely by any analysis of what a photographic image is about).

The fact is that the library's internet use policy looks pretty good.  It expressly prohibits using library computers to view "pornography," a much broader class of material than the more legalistic "obscenity." The library could implement filters, but it doesn't appear that any such filter would have prevented the kind of communication that this parolee engaged in.  Violation of library policy results in the the revocation of a patron's internet privileges, or even general library privileges.  What else does SafeLibraries expect the library to do?  Anything beyond this is the purview of the police department and district attorney's office, not the library.

More than anything else, it is this inability to maintain a balanced perspective that makes SafeLibraries' spin on things so untrustworthy.  He is obsessed with assassinating the character of the American Library Association, and cannot resist spinning a situation that has nothing to do with the ALA, and hardly has anything to do with any library at all, into a deliberately anti-social act by that institution.

One sentence in SafeLibraries' post reveals not only a deep misunderstanding of how the legal system works, but also a large does of paranoia.  Since the sentence speaks volumes, I'll let it speak for itself.

I suggest the parole board consider the library to be under the control of a foreign entity, the ALA, and that control made it an "attractive nuisance" that the perp could not resist and that endangers children.

Global Warmism (sic) and Banned Books Week?

SafeLibraries is quite right, in his Tuesday post, to point out the similarities between Global Warming and Banned Books Week: denying either requires an impressive ability to ignore empirical evidence.

WISSUP No More?

I haven’t paid much attention of late to Ginny Maziarka’s Wissup Blog, since she clearly has changed her focus to non-library issues.  But I see she’s still getting in her digs at the West Bend library with a diatribe in the sidebar of her blog. I don’t know how long it’s been there, but iIt shows she’s learned absolutely nothing from her failed censorship efforts. 

The numbered items in bold are from the Wissup blog.  My response is under each item.
 

1. All materials should be available for all ages (anything goes). Really!

Anything?  I guess it is anything, if you ignore the fact that the library already keeps obscene materials off the shelves entirely, separates materials written for children from materials written for adults, and encourages parents to supervise what their children are reading.

2. National control cannot (and should not) be resisted; therefore, the disturbing value system of the ALA, OIF,WLA trumps local control of the library by the citizens and taxpayers it serves.

“National control,” of course, exists only in the imagination of the paranoid.  The organizations listed are only advisory, and each library makes independent decisions.  Citizens and taxpayers have exactly the same level of control over the local library that they have over any other agency of local government, and by exactly the same means.

3. Young adults are children ages 11 through 17. (Be sure to address your 11 year old in a manner appropos.)

This says nothing substantive.

4. Assisting parents in identifying sexually explicit materials within your library is not important to them.

The question is not whether it’s important, but whether it’s even remotely feasible.  For every five parents there are at least four different opinions about what any given child should or should not be allowed to see, and censors like Maziarka steadfastly refuse to provide tangible criteria to guide such grading of materials.  Why is that the library’s fault or responsibility?  Allowing parents to make their own choices for their own children is the only practical approach.

5. You must stay with your children and read each book he/she checks out to assure they are not entering into the YA Zone, that is, the "Yes to All Zone."

Parenting is work, especially if you’re the type who tries to limit the ideas and information children might find in books.  Calling the YA zone a “Yes to All” zone is a statement of personal values that any parent is entitled to make, but is irrelevant to public policy.

6. ..that if other people's young children (even younger than 11....) are openly reading books of a sexually explicit, graphic nature, say nothing...and by all means, don't stop them from checking them out. You, too, can have an 8-year-old snag "The Joy of Sex" off the shelf right here in your very own library!

Well, yes, as a matter of fact, you should parent only your own children.  When it comes to other people’s children, you should mind your own damn business.

7. ..that porn filters are not required, therefore, none are needed. True loyalty to the many children they serve. After all, we would not want to restrict freedom of speech to those young'uns!

The real stumbling block to the implementation of internet filters on computers used by children is the overreaching of the censors, who invariably try to take advantage of the situation in order to interfere with the Free Speech rights of both minors and adults.  If they would get just a little more practical, let adults be adults, and recognize that even minors have constitutionally protected rights to receive information, something could be worked out to limit children’s internet access to pornography. 

8. ...that organizations such as SafeLibraries, PFOX, PABBIS, and Family Friendly Libraries, that work to protect children from being sexually victimized are not welcome in our community.

Everyone welcomes organizations that actually work to protect children from being sexually victimized, when that goal is not merely empty rhetoric, and when it seems that the organization can actually achieve that goal.  None of the organizations mentioned here fits that description.  The primary goal of all these organizations is censorship first, with children’s safety at best a distant second.  None acknowledge the constitutional limits within which they must operate, therefore none of them can achieve any real-world goals.  And if they cannot achieve any real-world goals, they cannot protect children from anything.  All of these organizations should be resisted, if for no other reason than that they clog the communication channels with disinformation and hinder any real progress on either side of the debate.

9. That the excerpts listed below (WARNING: NOT SUITABLE FOR CHILDREN) are perfectly acceptable for the eyes of children.

As a parent, you should decide what is acceptable to you and therefore to your children.  But you have no right to assume that the whole planet agrees with you.  And by the way, obscenity law requires that books be evaluated “as a whole,” not on the basis of isolated excerpts.

This is a propagan[d]a battle to ensure children retain access to inappropriate mate[r]ial despite the law, common sense and community standards.

Despite what law, exactly?  If your library really is violating some law, then call the police.  If not, then stop making baseless claims. Talk about propaganda: the censors know they’re lying about the “despite the law” part. 

Private Options and the Sincerity of the Censors

One of the larger errors in the thinking of censorship proponents is their failure to distinguish between their private values and public policy.  Any individual is perfectly entitled to define whatever they disapprove of as objectionable, and to take steps to keep such materials out of their personal lives.  They get to choose what books they buy, which movies they go see, what music albums their children can keep at home, and the like.

When it comes to their private choices, we have to give them the benefit of the doubt and assume they're sincere in their beliefs.  But as soon as they try to impose private beliefs on society in general, that sincerity is can, and should, be questioned.  Once they've explored the public options and are told quite clearly that public policy can't or won't accommodate their goals, why do they persist?  The fact is that there are private options that can accomplish what they want to accomplish, at least with regard to their own children.  If they're really concerned with their children's wellbeing, and it's clear that they can't force the public library to do what they want, should they not then pursue those private options?

Persisting in attempts to subordinate public policy to their private beliefs shows that their aim is politics, and not protecting children.  It is a measure of their sincerity, or lack of it, that they continue to try to subordinate the public library to their private  values.

For those parents who want strict control over the values and information to which their children might be exposed in a public library, there are a number of private options:

• Open a private library.  These used to be more common in the US, but have become quite rare, in part because they are very expensive to run.  But if a library is private -- serving only customers who have paid a membership fee -- the library can do whatever it wants.  They can select, remove, re-shelve, label, restrict access to, and filter whatever they want, however they want.  No need for any government intervention or court oversight.  No grounds for claims of banning or censorship.

• Run a private library by mail.  It would still have to be a private membership operation to keep it legal, but would be a lot cheaper than a building patrons could visit (and there are specialized libraries already running like this).  They can put their catalog online and registered customers can check out and return books by mail.  Same freedom from those pesky Free Speech laws as above.

• Operate a private library entirely on-line.  Increasingly, books, music, and video are all available electronically.  Many brick-and-mortar libraries already have many selections they can make available to patrons online.  The technology is well in place to support this, although some legal details are lagging a bit behind.  In spite of this temporary stumbling block, the age of the all-online library has arrived.

• Create an online ratings service.  This has been done, but so far only in a fragmented and scattered sort of way. It could get a lot more formal without a lot of expenditure.  A ratings service could be an online catalog of materials vetted by various groups or organizations.  Contents could be described, and one or more ratings could be displayed for each title. Customer comments could be appended and edited.  Any parent could then check any book of interest against this rating service and make a decision in advance of visiting the public library. Paradoxically, such ratings would be available via internet from computers inside the public library -- they just wouldn't be integrated into the public library's catalog.

It's not Censorship, It's parenting! (Or is it?)

In a November 18th post on Mercator.net, writer Erin Manning presents us with a dazzling display of ideology shutting down all logic.  The opinions she expresses are dear to SafeLibraries' heart, as he repeats her entire article on his blog.

Ms. Manning engages in a huge error of binary thinking, assuming that parenting cannot be censorship, even if one is trying to "parent" somebody else's children, and the "parenting" includes deciding what somebody else's child can read.  She clearly does not understand the definition either of parenting or of censorship.

Manning claims that since most challenges come from parents, these challenges are somehow beyond any wrongdoing.  She seems unaware that even if their motivations are pure, parents don't agree even with each other about what a given child should or should not read, let alone with a school board or library board.  She seems to think that parents who challenge books are making informed judgments, ignoring the history of book challenges, which shows that few challengers ever read the books they challenge.

She crosses the line from spin to either ignorance or  outright deception when she writes:

To put it bluntly, the ALA puts itself in the position of defending lousy, substandard, second-rate writing that would probably not even be published in the first place, were it not for the insatiable appetite for inappropriate content usually euphemised as "dark"or "edgy" by the sort of pre-teen who thinks angsty, brooding, sparkly vampires are a good idea.

Even a quick scan of the ALA sources she's obviously checked reveals the extreme falseness of this statement: many a challenged book is an award winner, some even of Pulitzers and Nobels.

And the list of what she thinks is bannable! Not just obscenity or pornography, but a list of objectionables that would pretty much empty library shelves of all but the most mind-numbing pablum: sex, drinking, drugs, profanity, "chat speak," prostitution, witchcraft, voodoo, devil worship, violence, implied sex, anti-religious and anti-Christian messages, homosexuality, suicide, nudity, eating disorders, and smoking (I assume she did not intend this as a complete list).


And after labeling almost any piece of worthwhile literature "inappropriate for children," she has the gall to claim that "removing books that are inappropriate for our kids is not the same as banning books."  The same self-contradicting statement is made by many censors across the U.S.: "we don't want to ban anything, we just want to remove . . . ."  Ms. Manning made a serious blunder years ago when she decided not to take that introductory course in logic and critical thinking.

SafeLibraries is Right: A Public Libary can be a Dangerous Place

After a week of lambasting SafeLibraries, I want to point out that there is one critical point on which I agree with him completely: A public library can be a dangerous place.

Basic to much of the censorship rhetoric is an unspoken assumption that a library is, or ought to be, a nursery or day-care center.  No public library is either, nor can any public library ever be either.  Library staff have no legal right nor legal responsibility to supervise anybody's children.  A parent dropping their a child off at the library might has well have turned the child loose at a shopping mall.  Parents, please consider:

• A library is a public place: anybody can walk in off the street.
• Crimes are committed in libraries, as they are in many other places, both public and private.
• Library staff have no in loco parentis rights or responsibilities: they are not supervising your children.
• Most libraries have no police or private security guards on duty.
• A library that does have police or private security on duty is likely to have experienced security problems in the recent past.
• A public library is a place where children congregate.  This is known to potential kidnappers, molesters, and other exploiters.
• Computers in your library might not have internet filters.
• If your library has internet filters, those filters are not 100% reliable, and even if reliable, might not filter out everything you think should be filtered out.
• Books and other materials in a library cover a wide range of views, and you might find some of these objectionable or inappropriate for your child. 
• There are no controls within the library to prevent your child from accessing any library materials.  

As a parent, you have options in dealing with these issues.  Firstly, you never have let your child enter any public library.  Alternatively, you can accompany your child to the library and supervise your child's use of  library materials and services.  If you can't go with your child, you can make sure your child is accompanied by some other adult you have chosen to trust.  You can ensure that a younger child is accompanied by an older minor who is emotionally mature enough to act responsibly.  But if you think your child is not mature enough to go to a shopping mall alone, that child is probably not mature enough to go alone to the library.

And even if we censor and filter all that the censors want to censor and filter, most of the above would still be true.

SafeLibraries Abuses the Definitions Banned and Censored

At last, we get to the end of my list, number six of the six basic and basically incorrect tenets that SafeLibraries constantly builds on. I've dealt with this one elsewhere, so I'll keep it short.

Denial is a wonderful thing.  Censorship proponents often say utterly irrational things like, "we don't want to ban anything, we just want this book removed from the library."  Or they'll say, "we don't want to censor anything, we just want this book re-shelved from the children's section to the adult section." Safelibraries and a number of conservative columnists love to say that the Banned Book Week is a hoax, claiming that no books have been banned in the US in decades.  And, ever so conveniently, they all get to paint themselves as something other than what they are. "We're not censors," they claim, "we just . . . ."

While words like censorship and banning certainly do apply to large-scale prohibitions, they also apply to very small-scale infringements on Free Speech. The general understanding of the term has never been restricted only to large-scale prohibitions, and any attempt to restrict its use that way is artificial and self-serving.

Regardless of the common understanding of the terms, courts have made it abundantly clear that they can can and do apply to very small-scale infringements on Free Speech.  In their formal decisions they've called the removal, even the re-shelving, of a single volume in single library, censorship and banning. They've also made it clear that the terms apply even when a book is abundantly available outside of a library, in bookstores or other locations (availability in one location does not change the fact that restricting access in another location is, in fact, censorship and banning).

So the kinds of restrictions commonly proposed in library book challenges are censorship. And that means that many books that have been removed from libraries, re-shelved within libraries, or had access restrictions put on them, have, in fact, been banned. That's not my opinion. That's court precedent.  Banned Books Week, then, is far from a hoax.  Books are banned and censored every year.

And if those kinds of restrictions are, by court usage, censorship and banning, than the proponents of those restrictions are censors and banners: censors by intent if they work to achieve such ends, and censors in fact if they do achieve them.

For examples of how courts have used the terms banned and censored, see Right to Read Defense Committee v. School Committee of the City of Chelsea, US District Court, MA (1978), 454 F. Supp. 703, and Sund v. City of Wichita Falls, Texas, US District Court, N.D. Texas (2000), 121 F.Supp. 2nd 530.

SafeLibraries' Abuse of the US v. ALA Decision

The one court case SafeLibraries cites more than any other is the 2003 US v. ALA decision by the US Supreme Court.  This is an important censorship case, but nowhere near as important as SafeLibraries thinks.  I've dealt with this case more than enough on this blog, so I'll try to keep this brief.

The US v. ALA decision tested the constitutionality of the Child Internet Protection Act, or CIPA. The CIPA is basically a set of strings attached to the acceptance of certain federal funds.  The strings are that the federal government requires schools and libraries that take take those funds to implement internet filters on all computers, according to certain rules.

The ACLU and American Library Association fought this requirement as an infringement on Free Speech, but ultimately the Supreme Court ruled in favor of the federal government and the CIPA. Some of the key factors in the court's logic were: 1) the broad power of the federal government to impose conditions on the money it hands out, 2) a compelling state interest in protecting children from inappropriate materials, 3) that filters won't overblock too terribly minors' access to legitimate websites, and 4) the fact that the CIPA requires filters to be turned off if an adult user so requests. It is important to note that the court's reasoning is built on established precedents, which require restrictions to be narrowly tailored to the compelling state interest, and that the least restrictive available approach be taken.

If there is something new in this case, it is that there is some definition or clarity given here to the idea of restricting children's access to some materials that are less than obscene for adults, but are too sexually explicit for children.  The basic idea is something that the Supreme Court has indicated elsewhere it is willing to allow, within certain limits.  In this case we have a specific piece of legislation that implements such restrictions, and has been held by the court to be constitutional.

This did not fully settle the matter, however.  The court specifically left open the possibility of "as applied challenges," meaning that the constitutionality of the CIPA was theoretically sound, but the details of actually implementing that theory are still subject to court review.  Libraries, cities, and counties can still be sued if they block access to legitimate websites and fail to correct the problem.  Such a suit could result from overblocking the legitimate access of either an adult or a child.

As I indicated in my post on Monday, SafeLibraries seems to mistake the meaning of this case, as if the Supreme Court were somehow imposing these restrictions on the entire country. That is, he doesn't understand the difference between a court decision that allows certain kinds of legislation to be applied, as apposed to a court decision that requires some specific action.   I infer this from his description of the American Library Association as "defying the Supreme Court,"  or encouraging others to do so.  There is, of course, nothing here to defy.  If states or other entities want to try to implement restrictions on children's access to materials that are not obscene for adults, but are too explicit for children, they are free to try to work out legislation that will pass the kind of constitutional test that the CIPA underwent.  One thing you can be certain of is that there will be a suit and the law will be tested.

Absent such legislation, SafeLibraries has no leg to stand on.  The US v. ALA decision is not a law unto itself, but is the validation of one specific law, the CIPA.  The CIPA, in turn, is quite narrow, applying only to internet access and only to libraries that take specific federal funds.  It imposes no controls at all on libraries that don't take those funds, and it imposes no controls at all on books or other materials on any library shelves.

As I write this, it occurs to me that there might be a side-effect that arises from failing to understand the difference between allowing and requiring certain kinds of laws.  SafeLibraries might have jumped to the conclusion that the US v. ALA decision allows some kind of executive action without supporting legislation.  That is, for examples, that a library board could decide to restrict children's access to certain books without a state law in place to describe exactly what kinds of materials could be so restricted, by whom, and by what procedures.  This is a serious misreading of the decision, and could explain some of the otherwise inexplicable positions SafeLibraries takes. 

Again, if SafeLibraries wants to accomplish what he claims he wants to accomplish, he needs to shift his focus away from blaming the American Library Association for foiling his plans, and on to working toward the development of legislation that will work within the constitutional limits courts have already described.  Mostly, this will have to be done at the state level, and may not be feasible at all in states with Free Speech protections in their own constitutions that are more expansive than those in the US Constitution.  Continued misrepresentation of narrow court decisions as broad legislation, or as authorization to take censorious actions not specifically authorized by law, will accomplish exactly nothing.

How SafeLibraries is Wrong about "Community Standards"

I agree 100% with SafeLibraries when he says that “community standards” are an important part of the legal definition of obscenity.  The US Supreme Court has clearly done away with the possibility of a single, nation-wide definition.  The court has recognized that community standards can vary one from another, so material that is acceptable in one town might be prohibited in another.

The problem, as is too often the case in censorship battles, is overreach:  censorship proponents take the idea of “community standards” further than courts ever intended or will allow.  Yes, the standards used to decide what is or is not obscene can vary from community to community, but they cannot vary infinitely.  Courts have placed significant limits on the degree of latitude juries have in that decision.

The legal definition of obscenity was established in its current form in a 1973 US Supreme Court case known as Miller v. California.  In that case the court decided:

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. . . . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be carefully limited. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary , artistic, political, or scientific value.  [Internal citations omitted]

It is clear from this language that the legal definition of obscenity can be applied only to materials that are highly sexually explicit.  The court itself emphasized that point, just a little further into their decision, by writing:

Under the holdings announced today , no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or  construed.

Language in various parts of the Miller decision made it clear that community standards could be used by juries who were charged with determining whether an item was obscene.  But, the language of Miller also made it clear that materials must be “hard core” in order to meet the definition of obscenity, limiting the latitude juries had.

Those limits were tested almost immediately, in the 1974 case Jenkins v. Georgia.  That case tested the conviction, under Georgia state law, of a movie theater owner who showed the film Carnal Knowledge.  A local jury held that the film was obscene, and the Georgia Supreme court agreed.  The US Supreme court not only disagreed, but also overturned the conviction, holding that the lower courts erred in finding the movie obscene.  They chided the lower courts for allowing the local jury to stray too far from the “hard core” requirement previously established.  They wrote:

. . . it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is “patently offensive” . . . . we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct . . . ."

The language of the Miller Test was a little vague as to what kinds of standards were to be used in evaluating each of the three prongs of the Test.  The US Supreme Court eliminated some of that vagueness in a 1987 case known as Pope v. Illinois.  The court wrote:

Only the first and second prongs of the Miller test - appeal to prurient interest and patent offensiveness - should be decided with reference to "contemporary community standards." The ideas that a work represents need not obtain majority approval to merit protection, and the value of that work does not vary from community to community based on the degree of local acceptance it has won. The proper inquiry is not whether an ordinary member of any given community would find serious value in the allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.

The phrase reasonable person should be understood here in its special, legal sense.   Specifically, the standards of a reasonable person do not vary from community to community.  This, then, acts as another check on the latitude juries have in defining obscenity.  Serious value must be judged by the standards of a theoretical, reasonable person, not by the standards of just one community, and any material that has such value cannot be found to be obscene.

Libraries, of course, rarely, if ever, acquire materials that meet this legal definition of obscene.  Not surprisingly, then, all or most of the books that are argued about in any typical library challenge are also not obscene.   Of the challenged books I’ve reviewed on this blog, I’ve yet to find even one that is obscene.

If the pro-censors really want to accomplish something, they’re going to have to start by giving up their exaggerated word play.  Claims that books are “inappropriate,” “pornographic,” “encourage homosexuality,” “teach witchcraft,” and the like, are vague and sloppy and don’t tell anything about whether or not a book is protected speech.  Given that the pro-censors want to limit access to speech that clearly is protected, they’re going to have to begin by honestly facing the limitations courts have already defined, and finding ways to work within those.  Groundless claims about obscenity are pointless, as are over-played assertions that local communities can redefine that term at will.

Vamos a Cuba?

In the midst of my sharp criticism of SafeLibraries, I think it only fair to mention a positive note.  In spite of a small excess of drama, his post today on Vamos a Cuba was fairly accurate.

The case was about the removal of a book titled Vamos a Cuba from a school library.  The school board claimed it removed the book due to factual inaccuracies, while some citizens felt their motivation was political. The aggrieved citizens had their day(s) in court, and lost.  In February an appeals court made their determination that the motivation of the school board was what they claimed: one of factual accuracy.  This is newsworthy now because the US Supreme Court just declined to hear an appeal, making the decision of the appeals court final.

There is nothing surprising or dramatic in this case.  The power of a school board to regulate the educational content of both classroom and school library is well established (at least since the Board v. Pico case of 1982, if not earlier).  School boards can make choices about books as long as their motivations are genuinely pedagogical, and not mere disagreement with the views expressed in any book.

In this case, the US Court of Appeals for the 11th Circuit examined the contents of the challenged book and the claims made by the school board.  The court sided with the school board in two important details: 1) that the book contained factual errors, and 2) these factual errors were the reason the school board chose to remove the book.  Those determinations being made, it was then clearly within the power of the school board to remove the challenged book from the school library. The ACLU's attempt to appeal that decision to the US Supreme Court was quite a long shot indeed, and did not succeed.  It was a long shot because the Supreme Court would generally prefer to rule only on the constitutional issues at hand, and there didn't seem to be any left.  It would be very unusual for the Supreme Court to override the appellate court's findings of fact about the errors in the book or the motivations of the school board.  Recall that in the Pico case, the Supreme Court defined the constitutional limits on the school board's power, then sent the case back to a lower court for determination of the facts about the school board's motivations (at which point the school board gave up).

The drama that SafeLibraries would like to believe is implied by this case comes from statements by former Miami-Dade school board chair Frank Bolanos.  While the court's own logic was quite clear, and quite mundane, Mr. Bolanos puts a more strident spin on things. Mostly, Bolanos reveals his own mis-comprehension of the legalities.  News sources have him proclaim that "the case sets precedent for districts to back parents' rights in future cases."  Of course, no parental rights were tested in this case.  The decision rests entirely on the broad powers of a school board to regulate the educational content of schools, provided the board is genuinely motivated by educational concerns rather than disagreements with point of view.  Mr. Bolanos is also quoted as saying, "Censorship occurs when government refuses to allow people to purchase material, not when it refuses to provide that material at no charge."  Here, Mr. Bolanos clearly does NOT know what he's talking about, as his attempt to redefine the term censorship would break sharply with court precedents. The court in this matter made no such determination.  They were more practical, sticking to the factual determinations they had to make about what motivated the board to remove the book.  Mr. Bolanos, would do well to follow the example, set by the court, of sticking to the facts.


For the more legal minded: the decision of the 11th Circuit Court of Appeals can be retrieved from that court's website at: 


http://www.ca11.uscourts.gov/opinions/ops/200614633.pdf


And can also be found through Westlaw and other law databases, where it is indexed variously as 557 F.3d 1177, 242 Ed. Law Rep. 519, and 21 Fla. L. Weekly Fed. C 1467.

How SafeLibraries is Wrong about a "Compelling State Interest"

I should start by saying that I agree 100% with SafeLibraries when he claims there is a compelling state interest in protecting children from inappropriate materials, or, as he endlessly quotes from the US Supreme Court's US v. ALA decision:

"The interest in protecting young library users from material inappropriate for minors is legitimate, and even compelling, as all Members of the Court appear to agree."

What I disagree with is what he does with this maxim, which is translate it into:

"Protecting Children is not Censorship"

While protecting children is a laudable goal, it is not a "get out of jail free card."  One could take many kinds actions to protect children.  Some might operate well within Free Speech or other basic civil liberties, but some might not.  If this is difficult to see in terms of Free Speech, try thinking about it in terms of a more tangible civil liberty, such as the Second Amendment's guarantee of the Right to Bear Arms.  Would it protect children if we were to confiscate all firearms now in private hands?  Clearly it would, since children all too often are injured or killed in the crossfire of misused guns.  Would it be legal to implement such a confiscation?  Clearly it would not, since the Second Amendment forbids it, regardless of goals or motivation.  Neither would it be legal to attempt to reduce all adults to reading only books that are fit for children, since the First Amendment forbids it, regardless of goals or motivation.  Simply stated, the ends do not justify the means.

To be fair, SafeLibraries often appends the word "legally" to the front of his maxim:

"Legally protecting children is not censorship"

This, of course, is a mere tautology, an exercise in circular logic that says nothing, since censorship itself is illegal (that is, the conclusion is embedded in one of the premises).

SafeLibraries counts a wider variety of actions as "legally protecting children" than courts would ever allow.  This arises from his abuse of the concept of the "compelling state interest."  The compelling state interest provides a motivation for enacting laws to protect children, but it doesn't make any and all such laws acceptable under the First Amendment.  When courts talk about this compelling state interest in terms of the kinds of laws that can actually be enacted -- as opposed to just as a motivating principle -- they always attach two conditions.  SafeLibraries is ignoring those conditions.

What the courts say, more completely than SafeLibraries tends to admit, is:

The state can restrict access to protected speech

IF there is a compelling state interest

AND the law is narrowly tailored to achieve that interest

AND the law is the least restrictive alternative available.

When you respect the constraints that the "ands" impose on the "if," you get restrictions on Free Speech that are limited enough that the courts might permit them.  If you ignore the constraints, you get a law that is overly broad, and will be overturned by the courts, as they have done time and again.

SafeLibraries' censorious rhetoric suffers from "mission creep," a process by which a reasonable goal gets expanded and expanded until it becomes unworkable and unachievable.  It is not enough for him that material that meets the current definition of obscenity can easily be prohibited under existing law.  It might be enough for him  -- I don't know -- to add some restrictions on material that is not obscene for adults but is too sexually explicit for children.  Such a goal might be achievable, but he'll never achieve it.  He undermines his own efforts by overreaching. He ignores the need for narrow tailoring and minimal restrictions, and so supports restrictions no court will stand for.  He tries to use the goal of protecting children as a "get out of jail free" card.  He tries to make the ends justify the means.

If we really want to protect children, shouldn't that include protecting the Free Speech rights that even minors have in our legal system?  If we are overzealous in attempts to protect children from certain harms, and in the process trample those rights, have we not become a source of harm to the very children we are trying to protect?

Why SafeLibraries is Wrong about Private Intervention in Public Libraries.

Much of SafeLibraries’ rhetoric depends on a claim that local citizens have a legal right to control the detailed operation of their public library, a right he claims the American Library Association is trying to take away. This authority, supposedly, allows citizens to override the decisions of librarians and library boards, and to dictate which books to buy or not to buy, dictate which children’s books get moved to the adult shelves, and dictate which books get one or another kind of a warning label. As he showed in his recent postings regarding the Cheshire, CT, controversy, no vote or other measure of majority opinion is required; apparently any sufficiently organized and noisy group can assert this authority.

It is difficult to imagine how anyone could get such a ridiculous idea.

It is obvious to anyone who bothers to think for even a minute that no group of aggrieved citizens can tell the police department what color their uniforms should be, nor dictate that the mayor’s office must buy paperclips from Office Depot rather than from Office Max. It should be equally obvious that a library is just another agency of local government. The people who work there are paid by a city or county, they report to elected or appointed officials, and are bound by state and local laws of public administration.

Individual requests or group petitions for changes in library policy or review of materials are fine: they’re as valid a means of communicating citizen interests to the library as they are to any other department of government. But they’re only requests. There is no requirement, in a library or any other part of government, that what citizens request must be implemented. It is the elected and appointed officials who must ultimately make the decision. They’re the ones who run the day-to-day operations of any government agency, and they must consider not only citizens’ input, but also the law.

Citizens who don’t like the way their elected and appointed officials are running things can try to change laws through a ballot initiative. They can try a recall campaign, if they’re motivated enough. Certainly, they can make choices about how to vote in the next election. But they can’t arbitrarily take over the day-to-day operations of the library, any more than they can take over the detailed management of the Department of Parks and Recreation.

So this right to intervene in running local library, a right SafeLibraries urges citizens to defend against ALA encroachment, does not exist at law. Am I being unkind if I call it a figment of his imagination? Given that he asserts the existence of the non-existent, there are only two other possibilities: 1) he's lying knowingly, or 2) he's just plain ignorant of the facts. I don't think he's either of those, and calling this a figment of his imagination is the kindest of the available alternatives.

Why SafeLibraries is Not to be Believed.

I really do feel regret when SafeLibraries claims I am attacking him personally, which means I’ve been feeling regret often of late.  I think this is unfortunate, but also necessary.  The disinformation he produces provides an awful lot of support, at times even impetus, for attempts at censorship, and so that disinformation has to be countered. 

In a recent comment to his article of November 12^th, he complained about the remarks I made there.  Speaking in the first person he asked, “I'm IMAGING things? I'm putting words into people's mouths? These are not personal attacks going directly to my mental acuity and innate honesty?”

Well, they do go to his mental acuity and innate honesty.  But they’re not personal attacks. All I did was point out his factual errors.   If his mental acuity and innate honesty are called into question by the factual inaccuracies he presents, that is his fault, not mine.  His position seems to be that I should not be too pointed in revealing his inaccuracies, lest I inadvertently reveal that he is an unreliable source of information.  That is not a reasonable demand.

Having been banned from SafeLibraries’ blog, I am now free to speak my mind without struggling to find the invisible mine field of what he thinks amounts to a personal attack.  I have no doubt that he will consider this entire essay, and several that follow, to be one giant personal attack.  I don’t see it that way.  I’m trying to point out his factual errors.

Let me start with some positives.  SafeLibraries is a smart guy.  He has studied his issues at length, has read widely, and has shown that he can distill information from various sources into a coherent whole.  He has a certain flair for argumentation, indicating a relatively quick wit as well.  I suspect also that in his own way he even has a certain sense of honesty in his work.  It would be easy to dismiss SafeLibraries if he were clearly stupid or an obvious liar.  He is neither of those, and is therefore a force to be reckoned with.

In spite of these positive traits, I find the majority of his blog and web posts to be misleading in the extreme.  This is a compliment to his gift with words, and maybe even to his dedication to whatever his underlying ideology really is, but it is certainly not a compliment to the balance or factuality of the analyses he produces. 

SafeLibraries’ prolific conversion of information into disinformation is based in the variety of “honesty” he seems to work with.  This brand of honesty is not especially unusual, but it is quite dangerous to anyone interested in a facts rather than fantasy. Generally, he tries to ensure each individual statement he makes is true in some sense.  Unfortunately, he is far less concerned with whether or not the sense in which his statement is true has anything to do with the sense that is taken home by the reader.  In other words, the truth value of what he says is different from the truth value of what he communicates.

For example, consider his characterization of Toni Morisson’s book The Bluest Eye.  SafeLibraries has called this the “bestiality book.”  Now, in a certain sense, that is an accurate characterization: the book does contain the word bestiality.  But the idea set in the minds of SafeLibraries’ readers by his statement is that the book is about bestiality, or at least contains significant descriptions of acts of bestiality.  I have read this book and can say with certainty that it contains not the slightest hint of any description or definition of such an act.  It does contain the word bestiality, exactly once.   And this is precisely what I mean about the difference between what he says and what he communicates.  He said the book is a “bestiality book,” and what he said is true, in some sense.   But what he communicated to his reader is that the book contains descriptions of acts of bestiality, and this is completely false. 

That is why I made a big deal recently of his frankly small gaffe in turning a paraphrase of Judith Krug's words into a direct quote.  He knows this violates journalistic and academic principles of writing, and is usually more careful than that.  A similar gaffe occurred in his letter to the Leesburg, Florida, commissioners, when he clearly gave the impression that the US v. ALA Supreme Court decision allowed restrictions on books as well as internet content (it doesn't).   These two examples seem unusual to me because I can’t imagine any interpretative context which allows them to be true in any sense.  That is, they seem to me to be bold-faced lies.  I suspect, however, that I’m missing something.  Somehow, somewhere, in his mind there is a way of interpreting these statements that makes them true in at least one possible sense, however unimaginable that might be to anyone else. 

His verbal shell-games are fast, frequent, and massively misleading, as even a quick review of some his recent article headlines reveals.  Defending the use of The Bluest Eye in high school curricula becomes “Racist ALA Supported Bestiality for Howell, MI, Children Because Author Is Black.”  The firing of circulation desk attendants after a year of interfering in multiple library policies is portrayed as “Librarians Fired for not Pornifying Child.”  A guest article promoting awareness of the commonality of pornography use is twisted into “NCAC Promotes Porn” (whatever that means). 

This general treacherousness with words is not random.  His spin-doctoring is carefully directed to prop up a set of core claims that he is unable to support by more factual means. In the interest of brevity, I have picked the six of these core claims that appear to me to be the most essential to his position:

1. Local citizens have a legal right to intervene in the detailed operation of their local library, including that they can tell the library what books to buy or not to buy, where books should be shelved, and which books should get warning stickers put on them.

2. The policies recommended by the American Library Association (ALA), especially those protecting the Free Speech rights of minors, are solely based on an ideology committed to “sexualizing children.”

3. A “compelling state interest” in protecting children from pornography trumps all Free Speech concerns.

4. The recognition of “community standards” in the definition of obscenity allows each community to suppress whatever forms of expression it disapproves of.

5. The 2003 Supreme Court decision known as US v. ALA is a major break with previous decisions on Free Speech, providing sweeping new powers to suppress age-inappropriate materials.

6. Terms like censorship and banning apply only to pervasive prohibitions by state or federal governments, so the ALA is wrong in claiming any books have been banned in recent years, and nothing SafeLibraries proposes amounts to censorship or banning.

It seems to me that much of the rhetoric on SafeLibraries’ blog and website results from some combination of these claims.  While critical to his position, these are all easily falsified, and falsify them I shall.  For the sake of my readers’ patience, I will split that up into a series of essays to be released over the next several days.

A Change in Emphasis

The West Bend library controversy, so far as I can tell, is over, since the primary censor has moved on to preventing health care reform, keeping Wisconsin sex education in the dark ages, and otherwise defending America from godless Communism.  The other library challenges I've tracked recently (Cheshire, Leesburg, and Jessamine County) each seem to have reached some kind of stalemate or impasse.  So now is a good time to regroup.

I had documented a good part of the West Bend controversy on www.BannedInWestBend.info, and have been wondering what I should do with the site as that particular controversy fades into oblivion.  I've decided to keep the site active, but to change its focus.  This seems quite appropriate, since for me the phrase "Banned In West Bend" is no longer a reference to one particular situation, but has become a label for misguided attempts at censorship in any library anywhere.  So I've revamped the website to that end, reducing the West Bend library issue to just one aspect of a broader set of information about censorship in public libraries.

I don't claim any special expertise, but I have chosen to document what I learned.  Most importantly, I want to leave some easily accessible information that might help others who find themselves in the position of having to fight censorship in public libraries.  So the website now has:

• Advice on Fighting Censorship 
• Sample Letters for communication with public officials.
• A Terminology Reference sheet defining key terms
• An annotated List of Court Cases from the US Supreme Court and US District Courts
• An annotated list of highly informative Books on Censorship

At present, the site also has varying degrees of detail on four separate examples of attempted censorship in public libraries:

• Cheshire, CT
• Jessamine County, KY
• Leesburg/Lake County, FL
• West Bend, WI

I have to give special thanks to Dan/SafeLibraries, more than any other individual or group, for making www.BannedInWestBend.info what it is.  Without his endless deluge of disinformation, I never would have dug so deeply into Free Speech law, nor read so many fine and challenged books.  However useful information on my website might be, it is there largely in response to him.

The Censorfreelib blog has already been opening up to the broader topic, without anything all that noticeable, beyond some minor reformatting installed over the last day or two.

SafeLibraries Twists Facts Again, and Bans NonCensor for Catching Him in the Act

In today's post, SafeLibraries once again twists facts and hopes nobody notices.  I caught him red handed, and now he's banned me from his blog.  As usual, he claims I am engaging in a personal attack, which I most definitely am not.  An ad hominem or personal attack seeks to damage a speaker's reputation rather than dealing directly with his evidence, in hopes that the listener will then pay less attention to the evidence.  It is NOT an ad hominem or personal attack to point out a factual error in someone's evidence.  If a speaker's reputation is damaged by being caught in fabricating evidence, that is the speaker's fault, not the fault of the person pointing out the fabrication.

The exact sentence in question, cut and pasted here from SafeLibrarie's blog post, is:

As Judith Krug of the American Library Association said, "Parents who would tell their children not to read Playboy 'don't really care about their kids growing up and learning to think and explore.'"

He has here altered the meaning of the source he is quoting from, which is a 1995 issue of Focus on the Family Citizen (I have carried his link forward into the above text).  The original source makes it clear that Krug's only original words were the quote within the quote: 'don't really care about their kids growing up and leaning to think and explore.'  SafeLibraries subtly rewrote the original, and in so doing put words in Judith Krug's mouth that the original makes clear she never actually spoke.  Judith Krug did not say the words "Parents who would tell their children not to read Playboy." Those are the words of the Focus on the Family Citizen magazine. This is quite clear from the caption under the picture at the bottom of page 3 of the magazine issue (click the link above).


To be clear, there is only one possible way to interpret the sentence SafeLibraries wrote, which is that all of the words within the outer quotes were Ms. Krug's own.  The only way a reader would discover otherwise would be to click on the link, find the quote in the original, and read the original sentence with careful attention to its punctuation.


My experience has been that this is quite typical of SafeLibraries' twisting art.  There's always a small change in wording here, a discrepancy ignored there, a possibility recast as a probability, a probability recast as a certainty.  In this case, he changes whose mouth which words came out of, a detail which can be critical in debates such as these.  After all such subtleties in one of SafeLibraries' articles are added up, we find that the reader has been allowed to take home a message that is radically different from the facts.  


In general, I doubt these shifts of meaning are accidental.  I think SafeLibraries knowingly modifies the facts to conform to the message he has decided in advance that they will carry.  I could believe today's gaffe was just an error if I didn't have so much of his history to work with, and if his obvious writing ability didn't make it so clear that he actually does know the rules.


I responded to his post:

Anybody out there know what the late Ms. Krug's actual words were in the above quotation? Only the words within the inner quotes ('don't really care about their kids growing up and learning to think and explore') are Ms. Krug's words, and that is only a sentence fragment.

The words in the outer quote ("Parents who would tell their children not to read Playboy") are the words of Focus On Family Citizen magazine, not Ms. Krug. This is quite clear if locate the quote in the source SafeLibries links that quote to.

So what did she really say?

Thu Nov 12, 11:39:00 AM 2009 

He wrote back:

Well, that's why I provided the quote accurately and the source material in its entirety, as is my habit, and just for reasons such as the one Non-Censor raises.

Here is that source again:

"What Lurks in the Library? - The American Library Association Believes Children Should Have Access to All Material, No Matter How Violent or Obscene," byScott DeNicola, (Focus on the Family) Citizen, 18 September 1995.

"Parents who would tell their children not to read Playboy 'don't really care about their kids growing up and learning to think and explore.'"

Thu Nov 12, 11:55:00 AM 2009

I Clarified:

You did provide the quote, per se, accurately. But the sentence you wrote was not accurate. You wrote:

As Judith Krug of the American Library Association said, "Parents who would tell their children not to read Playboy 'don't really care about their kids growing up and learning to think and explore.'"

Your sentence, as ordered and punctuated puts exact words into the mouth of Ms. Krug, which, in fact, she did not utter.

And in spite of the care I took to focus on exact words and facts, and to avoid issues of personalities, SafeLibraries' response was:

I provided complete punctuation. The double quotes and the single quotes are present and reflect the original. I provided the entire document that was the source of the quote. The quote is obviously not mine, and the portion that is Judith Krug's is obvious as well. I constructed the sentence in the normal manner that anyone would construct such sentences. Anyone can read the source and decide for himself if the author's sentence accurately presents the truth of the matter reported by the author.

Yet you are saying I'm putting words in someone's mouth. 

This is an example of your turning almost every issue into one where I am the target of your attacks. The NCAC literally pushing porn while at the same time advising local communities and school districts about "censorship," that you don't comment about. I suppose that is acceptable to you, but my typical use of punctuation is not.

In this case, you are cleverly accusing me.... No. You are expressly saying "Your sentence, as ordered and punctuated puts exact words into the mouth of Ms. Krug, which, in fact, she did not utter."

I followed all rules humanly possible to follow to ensure the quote was as accurately quoted as possible and the source was as accessible as possible. I wrote it no differently than someone else would have written it under the circumstances.

Yet here you are, Non-Censor, telling me, telling my audience, "Your sentence, as ordered and punctuated puts exact words into the mouth of Ms. Krug, which, in fact, she did not utter." In other words, I'm a liar and can't be trusted. Is there any other interpretation? It is a regular theme of yours in attack after attack.

Non-Censor, your comments are largely ad hominem in nature, have been made over a long period of time, and serve only to detract from the issue at hand. I have worked with you to change that, and for a blog post or two, you actually truly contributed for the first time, and I even pointed that out to you, even getting positive attention from the ALA. Ithanked you for that.

However, given the above and even despite my removing your persistent personal attacks from my previous blog post, you come back here and claim I am making things up despite my accurate and proper use of punctuation and link to a reliable source, and my sentence structure that anyone would have used without being accused of intentionally lying.

At some point one has to give up on a lost cause. Getting you to address issues instead of attacking me personally with falsity like illustrated by your current comments has been sincerely attempted by me, but I have obviously failed.

Sadly, I do not have the time to evaluate and respond to your persistent, personal attacks any longer. Please do not further write on my blog posts. If you do, I will remove your comments ASAP given the above circumstances and the obviousness that your attacks will never end no matter what I do, sad as that truly makes me. Do not write on my blog posts any further.

Thu Nov 12, 02:35:00 PM 2009

SafeLibraries Says the ALA is Strongarming Nicholasville, Kentucky!

Since SafeLibraries has censored me on his own blog, I’ll have to take the unusual step of responding to his disinformation on my own.  On Monday, November 9th, he posted an article about the firing of two desk attendants at the Jessamine County public library in Nicholasville, KY.  “ALA Controls Nicholasville,” his headline shouts.  Let's take a look at how he’s twisted facts into delusion yet again.

He claims that the employees were fired “overnight,” even though the Lexington Herald-Leader article he himself cites states clearly that they had been interfering with library policy for a year. 

He claims that citizens who came to a library meeting to discuss the firing and the appropriateness of library materials were unfairly silenced because they weren’t on the agenda.  He refuses to accept the plain fact that “not on the agenda” means no more and no less than “not on the agenda.”

He writes “the library actually refuses to comply with the citizens.”  How so?  He offers no details nor a shred of evidence that this is so.  What did the citizens actually ask for?  How many asked for it?  Was a vote taken?  Was it a majority opinion?  By what legal process was some will of the people established?  He’s just casting groundless aspersions.

In his view, the problem here is the American Library Association, which is somehow overriding community wishes.  He offers not the slightest bit of evidence that this took place.  The ALA is no more than a professional and advisory organization.  It has no regulatory or compulsory authority over anybody or anything.  Firing these employees was entirely the decision of the local library and library board, not of the ALA.  

SafeLibraries is obsessed with the ALA, which he claims is imposing some kind of arbitrary ideology on libraries everywhere.  He refuses to accept the fact the ALA policies are firmly grounded in Free Speech law.  When I asked pointed questions about those laws, he claimed I was engaging in a personal attack and deleted my comments.

He writes, “In that battle, guess who wins? The ALA. The children lose.”   As if the ALA was even involved in the battle! And how did the children lose? The unspoken, and unsubstantiated, claim is that children “lose” by having access to risqué graphic novels like Black Dossier.  Of course, he counts as nothing the First Amendment rights of minors to receive information.  Do children really win if, in our haste to protect them from age-inappropriate materials, we eliminate their Free Speech rights?  He enters into evidence not a single legal principle that would allow the library to restrict any minor's access to that book. 

He refers to Nobel Laureate Toni Morrison’s book The Bluest Eye as “the bestiality book.”  I reviewed that book on this blog, and found that it contained the WORD bestiality, but not the slightest description of any such act.  And when I called attention to his factual inaccuracy, he claimed I was trying to “besmirch” and “belittle” him, and deleted my comment as a personal attack.

He claims that “a community gets to decide for itself what is appropriate in its own public library.”  In fact, no such legal principle exists.  While the definition of obscenity is allowed to vary somewhat according to “community standards,” the Supreme Court has been quite clear that juries cannot push those standards to an infinite degree, and that materials like the Black Dossier book cannot be classified as obscene with regard to adults (see Jenkins v. Georgia).   SafeLibraries fails to comprehend that Free Speech rights are defined by the US Constitution and are NOT subject to arbitrary redefinition by states or localities.

His abuse of legal precedents reaches its peak in his handling of the Supreme Court’s US v. ALA decision, which upheld the federal government’s right to require internet filters on computers used by children as a condition attached to the acceptance of certain government funds.  SafeLibraries insists, relentlessly, that this case is some kind of major break with earlier Free Speech precedents, and no amount of quoting or explaining will snap him out of that utter delusion.  The US v. ALA decision says absolutely nothing of relevance to the Jessamine County library situation. 

I could go on and on, but I need to stop.

What SafeLibraries Doesn't Want You To Read.

Responding to posts on SafeLibraries' blog is often a dicey matter for me, since I find it very difficult to understand what he thinks does or does not constitute a personal attack.  He often accuses me of attacking him personally, when it appears to me I am only addressing the issues he's brought up.  Case in point is his post of Monday, November 9th, and my responses.  I only have some of that traffic, since he deleted my comments. You be the judge:

Non-Censor said...

Who is being unfair to whom? It is not fair of you to accuse me of personal attacks when all I have done is respond to the claims you yourself have made.

You DID say the firings took place overnight, and when I said you were incorrect about that I was not stating my personal opinion, but was referring to information provided in the Lexington Herald-Leader. I said so, and I provided a link to the article. 

You are right that we disagree greatly about the ALA, but I have no reason or desire to paint them as angels. I just don't see why you heap blame on an advisory organization for legal matters they have no regulatory control over, or local library decisions they did not make.

I suppose you could say the ALA indirectly supported this by suggesting to member libraries that they allow any patron to check out any non-obscene book. But that is not just ALA ideology, but a reasonable interpretation of Free Speech law.

My comments about the "bestiality" book were not meant to belittle or besmirch you in any way. YOU brought it up, linking to that in your main post. I never would have mentioned it if you hadn't tried to use it as evidence to support your position.

And you did not answer my question. What legal principle or precedent do you think would allow the citizens of Jessamine County do do as you suggest, to override the legal structure already laid out by local government, to override professionally trained librarians, to alter library policy to conform to "community view," and even replace the board if they stand in the way? And when all of that is said and done, what shape do you think the new library policies, conforming to "community views," can be? What existing law allows Black Dossier to be handled by any library in Kentucky in a way that is different from what has already been don?

Tue Nov 10, 10:49:00 PM 2009

And his response was:

SafeLibraries said...

I am removing the comments of "Non-Censor" as he has resorted to personal attack, my blog posts are filled with his personal attacks, I recently got him to address the issues, but he has returned to personal attack.

Tue Nov 10, 11:17:00 PM 2009

Jessamine County Situation Gets Much Clearer

In my October 29th post here, and on a page on www.bannedinwestbend.info, I called attention to the firing of two library employees at the Jessamine County public library in Kentucky.  The two employees prevented an 11-year-old patron from checking out a graphic novel called Black Dossier, which is part of the League of Extraordinary Gentlemen series.  The library employees took this action because they felt the book was pornographic or obscene.

Finally, some more incisive reportage has clarified some of the uncertainties in this situation.  In an article that appeared on Sunday, November 8th, the Lexington Herald-Leader dug into the details.

As I suspected, the fired employees were circulation desk attendants and not full librarians (it was difficult to imagine librarians taking the actions these employees took).  Also as suspected, their termination did not result from this isolated incident, but from over a year of resistance to library policies.  At least one of the fired employees had challenged the book in question, going through the formal challenge process.  After her challenge was considered and rejected, the employee checked the book out to herself and kept checking it out.  Apparently, she still has the book, and is now accumulating 10 cents a day in late charges.  The employee continues to deny wanting to keep the book away from adults, although that is exactly what she is doing.

As is all too typical of many cases of censorship, rhetoric and reality are two quite different things.  The fired employees continue to assert that the book meets some legal definition of obscenity, even though the library considered that possibility and rejected it.  As the Herald-Leader points out, Kentucky state law on obscenity contains specific exemptions with regard to public libraries, which is common (although not universal) in states across the country.   Having examined the book myself, I can say with some certainty that it is racy but not obscene.  They have gone so far as to assert  that the library may be committing some kind of felony by having or circulating the book, and yet they never contacted the police about this alleged crime, a pattern we've seen carried out over and over again by people who say a book is obscene but know they'd be filing a false police report if they took their own words seriously enough to act upon them.

Also typical of many cases, the fired employees are asserting that the local community is a "conservative" one, and that "community standards" define the book in question as obscene.  This, of course, is based on the quite mistaken notion that local communities have infinite leeway in defining what or is not obscene.  As I've recently pointed out on this blog, the Supreme Court has been quite clear that community standards are flexible but nowhere near that flexible.

In my opinion, the Jessamine County public library is to be commended both for allowing these employees to work through the legitimate challenge procedures and for firing them when they made it perfectly clear that they were interfering with the library's basic mission.

Jenkins v. Georgia

In a 1973 case known as Miller v. California, the US Supreme Court established the legal test still in use today to determine whether or not books, movies, or other forms of expression are obscene. Miller requires that a work, taken as a whole, appeal to prurient interests, be patently offensive, and lack serious value.  An item must meet all three of these tests in order to be considered obscene in a legal sense.  Miller allows juries to apply "community standards" to determine what is prurient and  patently offensive.

The idea of "community standards" is important but problematic, and is often abused by would-be censors.  In many attempts at library censorship, the phrase "community standards" is recited like some kind of incantation aimed at allowing each locality an infinite degree of latitude with the definition of obscenity.  The censorious logic assumes that the community can declare anything it disapproves of to be patently offensive, and that such a declaration allows the material so labeled to be suppressed legally.  This logic is wrong at several levels, but especially in its abuse of the concept of "community standards."

The Jenkins v. Georgia decision, made in 1974, was an important clarification of this concept of "community standards."  The US Supreme Court held that juries can NOT, in fact, apply the term just because they disapprove of contested forms of expression.  On the contrary, the Court clarified that contested materials must rise to a certain level of explicitness before the label can be applied, and must be of a "hard core" nature.  The language of the decision makes it clear that mere nudity is not sufficient to meet the definition of "patently offensive," and that even sexual activity must be described in detail before it crossed that line.

The Jenkins case began in Georgia, where a man was convicted of violating that state's obscenity statute for showing the movie Carnal Knowledge in a theater.  The defendant appealed to the Georgia Supreme Court, which upheld his conviction.  When the appeal was taken further, the US Supreme Court disagreed with the Georgia courts and overturned the conviction.  Part of the US Supreme Court's logic was that the movie was not obscene because it did not meet the definitions laid out in the Miller. The Georgia courts had erred in that they allowed the jury too much latitude in deciding what is and is not "patently offensive."

In the court's own words:

Even though questions of appeal to the "prurient interest" or of patent offensiveness are "essentially questions of fact," it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is "patently offensive." . . . . we made it plain that under that holding "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct . . . ."

Our own viewing of the film satisfies us that "Carnal Knowledge" could not be found under the Miller standards to depict sexual conduct in a patently offensive way. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the "patently offensive" element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including "ultimate sexual acts" is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.

For citations and descriptions of the Jenkins and Miller cases, Click Here.